26 F.

3d 297

UNITED STATES of America, Appellant,

v.
Jack J. MINICONE, Jr., also known as Jake, DefendantAppellee,
Jack Zogby, also known as Turk; Anthony J. Inserra;
Benedetto Carcone, also known as Benny; Russell
E. Carcone, Defendants.
No. 1049, Docket 93-1594.

United States Court of Appeals,

Second Circuit.
Argued March 10, 1994.
Decided June 7, 1994.

Deborah Watson, U.S. Dept. of Justice, Washington, DC (Gary L. Sharpe,

U.S. Atty. N.D.N.Y., Kevin E. McCormack, Asst. U.S. Atty., Syracuse,
NY, of counsel), for appellant.
John A. Cirando, Syracuse, NY (Emil M. Rossi, Patrick J. Haber, Ivette
Iza Zenner, Syracuse, NY, of counsel), for defendant-appellee.
Before: LUMBARD, FEINBERG and MINER, Circuit Judges.
MINER, Circuit Judge:

The Government appeals from a judgment entered on July 23, 1993 in the
United States District Court for the Northern District of New York (Munson,
J.), after a second remand, sentencing defendant-appellee Jack Minicone to a
379-month term of imprisonment on his January 1991 conviction for
conducting the affairs of an enterprise through a pattern of racketeering activity,
in violation of 18 U.S.C. Sec. 1962(c), and conspiring to conduct and
participate in the affairs of an enterprise through a pattern of racketeering
activity, in violation of 18 U.S.C. Sec. 1962(d). The relevant conduct bearing
on the sentence included the 1976 murder of one Al Marrone. According to the
sentencing guidelines, Minicone should have been sentenced to a 480-month

term of imprisonment. The district court's downward departure was based on a

combination of Minicone's minor role in the Marrone murder and the
misconduct of the murder victim.
2

For the reasons that follow, we vacate the sentence imposed by the district
court and remand the case with instructions that the district court impose the
statutory maximum prison term of 480 months.

BACKGROUND
3

This appeal provides us with the opportunity to write the third and final chapter
in what has become the four-year sentencing saga of Jack Minicone. Because
the extensive factual background of this case is set forth in our two previous
opinions, United States v. Minicone, 960 F.2d 1099 (2d Cir.) ("Minicone I "),
cert. denied, --- U.S. ----, 112 S.Ct. 1511, 117 L.Ed.2d 648 (1992) and United
States v. Minicone, 994 F.2d 86 (2d Cir.1993) ("Minicone II "), familiarity with
which is presumed, we recite only those facts relevant to the disposition of this
appeal.

Following a jury trial in the United States District Court for the Northern
District of New York, Minicone was convicted in January of 1991 of
conducting the affairs of an enterprise through a pattern of racketeering activity,
in violation of 18 U.S.C. Sec. 1962(c) (Count One), and of conspiring to
conduct and participate in the affairs of an enterprise through a pattern of
racketeering activity, in violation of 18 U.S.C. Sec. 1962(d) (Count Two).
These convictions were based on evidence at trial that Minicone and codefendants Jack Zogby, Anthony Inserra, Benedetto Carcone, and Russell
Carcone were involved in a wide-spread criminal enterprise, centered in Utica,
NY, that spanned the period between the years 1973 and 1989 and included
extortion, loansharking, illegal gambling, trafficking in stolen property and
murder.

Among the activities in which Minicone was implicated was the 1976 murder
of Al Marrone. Minicone, Zogby, and Inserra planned to kill Marrone shortly
after his release from prison because he had threatened to kill them and their coconspirator, Anthony Falange, and also because they feared that Marrone
planned to take over their territory. The three began plotting the murder six
months in advance. They interviewed several hitmen and ultimately hired
Edward Noel to assist in the murder. Minicone, Zogby, Inserra and coconspirator Dennis Pritchard met with Noel early in the fall of 1976 to plan the
murder. On the night of October 2, 1976, while Minicone and Inserra kept their
distance and monitored a police scanner, Noel, Zogby and another man shot

and killed Marrone on the sidewalk in front of his girlfriend's home.

6

Minicone also was involved in the attempted murder in 1983 of Thomas Bretti.
Minicone had been assigned to kill Bretti and attempted to do so by planting a
bomb on the front steps of Bretti's home. Bretti was seriously and permanently
injured when the bomb exploded. Minicone also participated actively in other
aspects of the illegal enterprise: he ordered Pritchard to steal money from two
local bookmakers in 1973; regularly engaged in the extortion of local
bookmakers; received bets and collected money on behalf of a bookmaking
operation; actively engaged in loansharking; and conspired with others to kill
Pritchard after Pritchard was suspected of being an informant. Although he
started out as a low-level figure in the enterprise in the early 1970s, Minicone
gained prominence and was working directly for the "boss," Anthony Falange,
by the late 1980s.

In the Pre-sentence Report, the Probation Department calculated Minicone's

offense level to be 43 and his Criminal History Category ("CHC") to be II,
resulting in a sentence of life imprisonment. However, the statutory maximum
that Minicone could receive for the offenses of conviction was a 480-month
term of imprisonment. See 18 U.S.C. Sec. 1963(a). Accordingly, the
appropriate sentence was 480 months. In his sentencing memorandum to the
district court, Minicone requested a downward adjustment pursuant to U.S.S.G.
Sec. 3B1.2 based on his minor or minimal role in the Marrone murder. He also
requested a downward departure pursuant to section 5K2.10 on the ground that
Marrone's wrongful conduct, i.e., his threats to murder Minicone and other
members of the conspiracy, contributed significantly to provoking the murder.

At the original sentencing proceedings in December of 1990 and January of

1991, the district court denied Minicone's requests for an adjustment pursuant
to section 3B1.2 and for a downward departure pursuant to section 5K2.10. The
district court found that Minicone's offense level of 43 and his CHC of II were
calculated properly. The district court nevertheless departed from the
Guidelines in order to achieve sentencing parity with Minicone's co-defendants,
who had been sentenced to terms of imprisonment of between 18 months and
240 months. The district court sentenced Minicone to consecutive terms of
imprisonment of 151 months on Count One and 240 months on Count Two, for
a total of 391 months.

Minicone and his co-defendants appealed their convictions and sentences to this
Court and the Government cross-appealed on the issue of Minicone's sentence.
We affirmed the convictions, vacated Minicone's sentence and remanded to the
district court "for the limited purpose of resentencing him in accordance with

the Sentencing Guidelines." Minicone I, 960 F.2d at 1105. On the appeal,

Minicone had identified as error, among other things, the district court's failure
to reduce his offense level pursuant to section 3B1.2 for being a minor or
minimal participant in the Marrone murder and its failure to depart downward
pursuant to section 5K2.10 for Marrone's wrongful conduct. Addressing these
contentions, we stated: "We hold that Minicone's claims, including, among
others, that he was a minor or minimal participant in the crimes charged, are
without merit." Id. at 1110. Addressing the Government's cross-appeal, we held
that the district court had abused its discretion in departing downward because
disparity in sentence between co-defendants is not a proper basis for such a
departure. Id. at 1111-12.
10

On remand, Minicone did not present any new evidence. Nevertheless, the
district court reconsidered Minicone's original requests for a section 3B1.2
adjustment and a section 5K2.10 departure. The court denied the section
5K2.10 departure, but after reviewing the case, found that a two-level reduction
in Minicone's offense level was warranted pursuant to section 3B1.2(b) for his
minor role in the Marrone murder. The court calculated Minicone's adjusted
offense level to be 42 which, combined with a CHC of II, resulted in a
Guidelines range of 360 months to life. The court sentenced Minicone to 379
months, one year less than his original sentence. The Government appealed
again.

11

On the second appeal, we concluded that the district court had violated the law
of the case rule by reconsidering Minicone's role in the Marrone murder after
the argument had been rejected on appeal. Minicone II, 994 F.2d at 88-89. We
found no support for Minicone's contention that, in disposing of the first appeal,
we had not determined the extent of his participation in the murder of Marrone.
Moreover, we found no change in the law or facts that would justify
reconsideration of our earlier ruling in Minicone I. We remanded "for
resentencing in a manner consistent with this opinion and our opinion in
Minicone I." Id. at 89.

12

At the second re-sentencing proceeding conducted on July 21, 1993, Minicone

again urged a downward departure pursuant to section 5K2.10 for Marrone's
alleged misconduct. Over the Government's objection, the district court once
again departed downward from the Guidelines range and sentenced Minicone
to consecutive terms of imprisonment of 139 months on Count One and 240
months on Count Two, resulting in a total sentence of 379 months. The district
court found that Marrone's wrongful conduct was "insufficient to warrant
departure by itself" and recognized that "the [District] Court and the Circuit
Court has [sic] already ruled or affirmed that there is no one factor which might

be considered alone to justify a departure." Nevertheless, the district court

found that a "combination of factors" justified a departure. The district court
opined as follows:
13 Court believes [Minicone's] role in the murder of Marrone, while it may not be
[T]he
distinguishable enough from the roles of the other defendants in this case to warrant
a mitigating role adjustment ..., in the Court's view it is different enough from the
roles of the others to be taken into consideration as a grounds for departure. At the
time of the Marrone Murder, [Minicone] was 28 years old and clearly only a minion
and perhaps an upstart in this criminal organization.... While he participated in the
planning of the murder, unlike other defendants in this case, he did not supply the
murder weapon, provide a safe house or rendezvous for after the murder and was not
at the scene of the murder. Further, the trial testimony clearly established the victim
in this case was a violent criminal who repeatedly threatened to kill [Minicone] and
others. And while [Minicone's] participation in the murder of Marrone was illegal
and cannot be justified, and will be punished, it appears his actions were in part
influenced by the conduct of the victim. The Court, again, does not believe this
factor by itself would warrant a departure ... but considers it part of a combination of
factors.
14

The district court concluded that its departure was structured to effect a onelevel reduction in Minicone's offense level, which it noted was equivalent to a
five-percent decrease. The court, "guided" by the fact that "the predicate act
controlling the guideline computation is the murder of Marrone," made the
following statement: "[T]he sentence I just imposed is within the range of
sentences for murder in the second degree available under New York State
Penal Law at the time the murder was committed, that is, 15 or 25 years to
life." The Government appeals from the sentence.

DISCUSSION
15

The "law of the case" rule bars the district court from " 'reconsidering or
modifying any of its prior decisions that have been ruled on by the court of
appeals.' " Minicone II, 994 F.2d at 89 (quoting United States v. Uccio, 940
F.2d 753, 757 (2d Cir.1991)). However, if an issue was not part of an appellate
decision, the district court may review the matter. Id. Moreover, the doctrine
does not bar an appeals court from reconsidering its prior rulings if, for
example, "there has been an intervening change of controlling law, new
evidence has become available, or there is a need to correct a clear error or
prevent manifest injustice." Id. No events have occurred since our decision in
Minicone II to cause our reconsideration of that decision. Indeed, the district
court noted correctly that it was barred by the law of the case from basing any

reduction in Minicone's sentence on his "minor role" in the offense, pursuant to

section 3B1.2, because that argument was rejected in Minicone I and II. The
district court also noted correctly that it was similarly barred from considering
the victim's characteristics as a basis for a downward departure, pursuant to
5K2.10, because that contention was rejected in Minicone I.
16

The district court's attempt to "combine" the two factors as a single ground for
departure was improper. A district court may depart from the applicable
Guidelines range when it finds an "aggravating or mitigating circumstance of a
kind, or to a degree, not adequately taken into consideration by the Sentencing
Commission." 18 U.S.C. Sec. 3553(b); see also U.S.S.G. Sec. 5K2.0
(Sentencing Commission's policy statement regarding departures, quoting Sec.
3553(b)). As the Sentencing Commission explains, it

17
intends
the sentencing courts to treat each guideline as carving out a "heartland," a
set of typical cases embodying the conduct that each guideline describes. When a
court finds an atypical case, one to which a particular guideline linguistically applies
but where conduct significantly differs from the norm, the court may consider
whether a departure is warranted.
18

U.S.S.G. Ch. 1 pt. A, 4(b). "[S]uch cases, [however], will be highly

infrequent." Id. Here, the district court does not suggest that either of the factors
it considered--Minicone's role in the offense and Marrone's misconduct--were
not adequately considered by the Sentencing Commission, only that the
combination of these factors justified departure. Indeed, it bears repeating that
we have twice considered whether Minicone's conduct was deserving of a
downward departure under the applicable Guidelines provisions and in both
instances we concluded that it was not. See Minicone II, 994 F.2d at 89;
Minicone I, 960 F.2d at 1110.

19

While this Court has not explicitly so stated, many courts have concluded that a
combination of factors, all of which are adequately considered by the
Guidelines, cannot justify a downward departure if they would not constitute
grounds for an adjustment or departure when considered independently. See
United States v. Goff, 907 F.2d 1441, 1447 (4th Cir.1990) (holding that
combination of drug addiction, family responsibility, compensation of
defendant with drugs instead of money and disparity between sentences of
defendant and co-defendant did not justify downward departure because
"viewing the factors cumulatively add[ed] nothing significant to the calculus");
United States v. Pozzy, 902 F.2d 133, 138 (1st Cir.) (district court's "totality of
the circumstances" approach, which included consideration of pregnancy,
marital relationship, effect of husband's punishment and lack of availability of

halfway house, rejected as basis for downward departure because it would

allow judge "to nullify the guidelines approach to sentencing"), cert. denied,
498 U.S. 943, 111 S.Ct. 353, 112 L.Ed.2d 316 (1990); United States v. Rosen,
896 F.2d 789, 791-92 (3d Cir.1990) (combination of absence of violence and
defendant's mental condition, both of which were considered by the Guidelines,
did not provide basis for downward departure); cf. United States v. Schular,
907 F.2d 294, 298 (2d Cir.1990) (number of weapons involved in offense and
presence of semiautomatic weapons, two factors already considered by
Guidelines, could not form basis for upward departure); United States v. Lara,
905 F.2d 599, 603 (2d Cir.1990) (affirming downward departure based upon
several factors not considered by the guidelines).
20

As the Third Circuit has noted, "a combination of typical factors does not
present an unusual case [warranting departure].... [T]o justify departure
anytime a conjunction of considered factors was involved would make every
case different and undermine the uniformity in sentencing sought by the
guidelines." Rosen, 896 F.2d at 792. Although Minicone refers us to two Ninth
Circuit cases that seemingly indicate that a sentencing court should look to the
totality of the circumstances in deciding whether the defendant's case is
atypical for purposes of a departure, our review of those cases reveals that
neither lends support to his contention. United States v. Takai, 941 F.2d 738,
742-44 (9th Cir.1991), involved "aberrant" conduct by the defendant that was
not adequately considered by Guidelines, while in United States v. Cook, 938
F.2d 149, 152-53 (9th Cir.1991), the decision was to remand because the
district court erroneously believed that it lacked authority to depart. In Cook,
the court gave no indication as to what factors were at issue in connection with
the possible downward departure.

21

Furthermore, it is clear that any disparity between the sentence a defendant

would receive pursuant to the Guidelines and the sentence he would receive for
the same offense under a state law sentencing scheme cannot be a basis for
departure. We have recently stated that

22
[a]llowing
departure because a defendant might have been subjected to different
penalties had he been prosecuted in state court would make federal sentences
dependent on the law of the state in which the sentencing court was located,
resulting in federal sentencing that would vary from state to state. To adopt this
rationale for departure would surely undermine Congress' stated goal of uniformity
in sentencing.
23

United States v. Haynes, 985 F.2d 65, 70 (2d Cir.1993). Accordingly, the
district court's desire to achieve parity between the Guidelines and New York

state law, benevolent as it may have been, was improper. Cf. Schular, 907 F.2d
at 298 ("Mere dissatisfaction with the Sentencing Guidelines is not a sufficient
reason for departure.").
24

In sum, we hold that where independent factors have been adequately

considered by the Sentencing Commission and each factor considered
individually fails to warrant a downward departure, the sentencing court may
not aggregate the factors in an effort to justify a downward departure.
Furthermore, we reiterate that parity between federal and state sentencing
schemes is not a proper consideration for a sentencing court.

CONCLUSION
25

For the foregoing reasons, we vacate Minicone's sentence and remand for
resentencing. In light of the history of this case, and in order to forestall any
further adjustments or departures in regard to the sentence that must be
imposed, we direct the district court to impose the statutory maximum prison
term of 480 months as the sentence for Jack J. Minicone, Jr.